8/6/2019 Computer surveillance order: India’s Information Technology Act, IT Rules lack adequate safeguards

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Tuesday, August 6th 2019

OPINION

Centre’s order on computer

surveillance is backed by
law – but the law lacks
adequate safeguards
The Information Technology Act’s surveillance scheme furthers
a colonial hangover.

Nehaa Chaudhari & Tuhina Joshi  

Dec 24, 2018 · 08:00 am
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8/6/2019 Computer surveillance order: India’s Information Technology Act, IT Rules lack adequate safeguards

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Dec 24, 2018 · 08:00 am

Nehaa Chaudhari & Tuhina
Joshi

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On Thursday, the Ministry of Home Affairs issued a statutory order authorising 10

“security and intelligence agencies” to intercept, monitor and decrypt electronic
information and communication. A media frenzy soon ensued, with Opposition
political parties seizing the notification as evidence that the government was running
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8/6/2019 Computer surveillance order: India’s Information Technology Act, IT Rules lack adequate safeguards

a surveillance
Home The state. The ministry
Final Count Video responded
The Latest Thewith
Reel a press release,
The Field clarifying
Magazine that
Trending  the
order was in keeping with Section 69(1) of the Information Technology Act, 2000, and
Sections 
the Information Technology (Procedure and Safeguards for Interception, Monitoring
Exchange The Plus
and Decryption of Information) Rules, 2009, proving that the order was sound in law.

Several government officials and Bharatiya Janata Party representatives have since
defended this order as being in India’s sovereign and national security interest. They
say it will bring transparency and accountability into surveillance, and that is is only
an extension of the previous Congress-led government’s policy from 2009.

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No doubt, Central and state governments have had the power to intercept, monitor
and decrypt any information in any computer resource since 2008, when Section 69 of
the Information Technology Act was amended to expand the government’s powers of
interception. This amendment was one of many changes introduced to India’s
surveillance framework to tackle crime and terrorism in the wake of the 2008
terrorist attacks in Mumbai.

However, the ministry’s December 20 directive is the first time such an order has
been introduced under this section; and in this difference between a legislation being
on the statute books versus it being implemented lies the reason for collective public
outrage. That said, research by the Centre for Internet and Society and SFLC.in shows

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8/6/2019 Computer surveillance order: India’s Information Technology Act, IT Rules lack adequate safeguards

that the
HomeIndian state
The Final has long
Count Videoengaged in surveilling
The Latest The Reel electronic
The Field communications,
Magazine Trending  and
other kinds of interception and monitoring.
Sections 

While railing against the ministry’s order is veryExchange Thefutile

welcome, it is Plus if it does not lead

to a conversation around the root of the problem – Section 69(1) of the Information
Technology Act and the accompanying Information Technology Rules. This section
empowers the Central and state governments to authorise government agencies to
RELATED monitor or decrypt “any information generated, transmitted, received or
intercept,
stored in any computer resource”. It lays down six grounds on the basis of which such
authorisation may be granted. These are:

1. The preservation of India’s sovereignty or integrity.

Opinion: Pakistan could never reach the Moon because it didn’t have its own Nehru
2. The security of the state.
TRENDING
3. Public order.

4. Maintaining friendly relations with other countries.

5. Preventing offences relating to 1. to 4. from being incited or committed.

6. Criminal investigations.

All authorisation orders issued by the government under Section 69(1) must be
reasoned and written, and must be subject to the procedure laid down in the
Information Technology Rules. As per these rules, all such orders must be scrutinised
by a review committee of the Centre, or the state in question, set up under Rule 419A
of the Indian Telegraph Rules, 1951. All review committees set up under Rule 419A
comprise only of government secretaries. This means that the executive sits in
judgment over its own decisions. This goes against one of the most basic principles of
justice and fairness – that no person shall be a judge in their own case.

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J&K: Why is BJP turning a state into a Union Territory and diminishing citizens’ democratic
rights?

Threat to privacy
State surveillance threatens individual privacy and must be subject to adequate
safeguards. Privacy is a fundamental right guaranteed by the Constitution of India, as
recognised by nine judges of the Supreme Court in August 2017. Like all other
fundamental rights, the right to privacy is not absolute, and can be restricted.
According to the Supreme Court, these restrictions must be: (1) backed by law, (2) for a
legitimate state aim, and (3) proportionate.
J&K special status: How the Modi government used Article 370 to kill Article 370

Consequently, any government order under Section 69(1) of the Information

Technology Act must fulfil this three-part test to be constitutional. The absence of
judicial or legislative oversight over the executive’s decision-making under Section
69(1) is likely to make it a disproportionate restriction on an individual’s fundamental
right to privacy and, therefore, unconstitutional.

Even the government-appointed Justice Srikrishna Committee of Experts, which has

been given the task of framing India’s data protection law, was concerned about this
lack of legislative or judicial review. This committee has cited Germany, the United
Kingdom, South Africa and the United States as countries with adequate procedural
safeguards over government surveillance actions. On page 125 of its final report, it
has noted, “Executive review alone is not in tandem with comparative models in

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democratic
Home nations whichVideo
The Final Count either The
provide
Latest for legislative
The Reel oversight,
The Field judicial
Magazine approval
Trending  or
both.”
Sections 

Exchange
The Information Technology Act and the Information The Plus
Technology Rules are but one of
many means ofisgovernment
‘Congress surveillance
committing suicide’: ininIndia.
Party whip Similar
Rajya Sabha provisions
resigns exist
over Article 370 in the
Indian Telegraph Act, 1885, the Telegraph Rules, 1951, and the Indian Post Office Act,
1898. These laws are the extension of a colonial legacy, used by a foreign power to
keep tabs on an alien population. Disappointingly, the Information Technology Act’s
surveillance scheme only furthers this colonial hangover. Indian privacy thought,
especially in the past few years, has reflected the idea that we must evolve an Indian
privacy framework, grounded in our constitutional values, and tailored to the Indian
context. It is about time that our surveillance laws begin to reflect our constitutional
values as well.

Nehaa Chaudhari is Public Policy Lead and Tuhina Joshi is Policy Associate at Ikigai
Law, a law and policy firm focused on new and emerging technologies. Their Twitter
handles are @nehaachaudhari and @tuhinajoshi11
Explainer: How BJP is proposing to change Jammu & Kashmir and what that means

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Information Technology Act Surveillance Right To Privacy Fundamental Rights National Security

Information

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Myth No 1 about Article 370: It prevents Indians from buying land in Kashmir
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IN PARTNERSHIP with

Refreshing and summer-

ready: Beat the heat with a
highball
Scotch is an all-year-round drink. Here’s how you can relish it in
the summer.

Aug 02, 2019  

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Aug
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You’re missing out on a lot if you don’t take your bottle of scotch out from your
cabinet as the months get hotter. Scotch is a versatile drink that you can experiment
with all year round; even the Scots agree. With its smoky and peaty flavours, the trick
lies in pairing scotch with the right summery ingredients that can lead to delicious
combinations.

How can you start your summer scotch experiment? Go for a classic scotch highball.
These cocktails have a few defining ingredients — scotch whisky, ice, soda and the
highball glass. The ice adds a cooling touch while waking up the subtler flavours,
giving you a more flavourful drink. The soda, meanwhile, helps stimulate your taste
buds. The highball
Watch: glass
Srinagar’s —were
roads which lends
empty the cocktail
and silent on the eveits
of name — is a tall,
the government’s narrow-
decision on
mouthed glass
Article 370which is great for preserving the fizz from the soda. Here is a summer-

friendly scotch highball recipe to help you get started.

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8/6/2019 Computer surveillance order: India’s Information Technology Act, IT Rules lack adequate safeguards

Home The Final Count Video The Latest The Reel The Field Magazine Trending 
Refresh yourself this summer with a Scotch Highball
Watch:
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What you need:

Highball glass 
Watch: No cricket, MS Dhoni is playing volleyball with his territorial army unit in Kashmir

Scotch whisky

Ice cubes

Fresh-cut orange wheel

Instructions:

Take a highball glass and pour 60ml of scotch whisky in it. Fill halfway with soda
water. Fill to the top with ice cubes and garnish with a fresh-cut orange wheel. Your
refreshing summer scotch highball is ready.
Watch: Quick-witted young girl saves five-year-old brother's life in Istanbul, Turkey

The most important part of mixing a highball is the choice of liquor. Go for a light-
bodied blended scotch like Chivas Regal 12, which is a blend of the finest malt and
grain whiskies, aged for a minimum of 12 years. Rich and smooth, it leaves behind a
lingering taste of honey and ripe pears, with vanilla, hazelnut and butterscotch notes.
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WithHome
Rob Roy,
The Morning
Final Count Glory
VideoFizz,
TheOld Fashioned
Latest The Reel and
Themany
Field more drinks
Magazine to choose
Trending 
from, it’s time you made scotch a part of your summer pick-me-up cabinet.
Sections 

This article was produced by the Scroll marketingExchange Theof

team on behalf Plus
Chivas and not by
the Scroll editorial team.

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Caught on camera: The Surya river overflows, cattle washed away in Maharashtra’s Palghar
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ANIMAL RIGHTS

It’s not enough to know if

chickens are suffering in
captivity. We need to find
out if they’re happy
Understanding happiness in poultry could tell us how to
improve its housing.

Mary Baxter, The Conversation  

Yesterday · 11:30 pm

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‘Congress is committing suicide’: Party whip in Rajya Sabha resigns over Article 370
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Maxpixel [Public Domain]

Yesterday · 11:30 pm

J&K
Mary special
Baxter, Thestatus: Pakistan summons Indian envoy, calls Centre’s action on Article 370 ‘illegal’
Conversation

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When animal welfare campaigner Ruth Harrison published a book in 1964 called
Animal Machines, there was a public outcry. Her vivid descriptions of post-war
intensive farming started a discussion about animal welfare that led to new
guidelines for safeguarding animals in human care. From this, the Five Freedoms
were born. They stated that animals should have:
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8/6/2019 Computer surveillance order: India’s Information Technology Act, IT Rules lack adequate safeguards

1. Freedom
Home from
The hunger
Final Count and
Videothirst
The Latest The Reel The Field Magazine Trending 

Sections 
2. Freedom fromattempt
‘Unilateral discomfort
to revoke autonomy’: Rights group opposes Centre’s move on Jammu and
Kashmir Exchange The Plus

3. Freedom from pain, injury or disease

4. Freedom to express normal behaviours

5. Freedom from fear and distress

The Five Freedoms are used as a way to assess animal welfare around the world, but
they’ve been criticised for their focus on limiting suffering rather than giving animals
a good environment to live in. The British Farm Animal Welfare Council revisited
these standards in 2009 and asked a new question that has shifted the way we think
about animal welfare. Does this animal have a life worth living?

The big news:

It’s no longer enoughFormer J&K CMs
to know arrested
if an afterisCentre
animal revokeswe
suffering, special
alsostatus,
needand
to 9know
other top
if it’s
stories
happy. But in the absence of a big toothy grin or a wagging tail, how do we do that for
a chicken?...

Read More

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Rajya Sabha adopts resolution to revoke J&K’s special status, passes bill to bifurcate state
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JAMMU AND KASHMIR

‘Dangerous step’: Protests

against move to scrap J&K
special status in Delhi,
Bengaluru, Bhopal
The implications went far beyond Kashmir, participants said.

Vijayta Lalwani  
Yesterday · 09:50 pm

A demonstration against the central government's decision to revoke Article 370. | Jewel Samad/AFP

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Yesterday
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pm Count Video The Latest The Reel The Field Magazine Trending 

Vijayta Lalwani
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Hours after the Modi government moved a surprise resolution in Parliament to end
Jammu and Kashmir’s special status on Monday, protests broke out in at least three
Indian cities.

Students, activists and lawyers gathered behind barricades manned by the police at
Jantar Mantar in Delhi. They held up protest banners, one of which said: “Stop
making Kashmir into a prison.” Another said: “Indian brutalities in Kashmir must
stop.”

Late Sunday night, the government had placed Kashmiri political leaders under house
arrest, partially suspended mobile internet services and closed down schools in the
Valley. On Monday morning, along with the resolutions seeking to end the state’s
special status, it also introduced a bill that bifurcated the state into two Union
Territories.

Protesting against these decisions, activist Harsh Mander said: “Narendra Modi and
Amit Shah have interpreted their second mandate in the election to alter and destroy
the Constitution. They have flexed their muscles further since the Opposition is
powerless.”...

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